FDA seeks to clarify confusion surrounding the law
May, 2017 – The Food & Drug Administration (FDA) was expected to begin enforcement of the menu labeling rule on May 5, 2017. However, only days before the enforcement date the FDA released a pre-publication version of an interim final rule which extends compliance and enforcement of the menu labeling rule until May 7, 2018.
In the interim rule, FDA explains “In the Federal Register of December 30, 2016, we stated that the compliance date for the final rule would be May 5, 2017. We are extending the compliance date to May 7, 2018. We are taking this action to enable us to consider how we might further reduce the regulatory burden or increase flexibility while continuing to achieve our regulatory objectives, in keeping with the Administration’s policies.” The delay of the rule is consistent with the executive orders that the President has released that are designed to reduce regulatory burdens.
The FDA will take the extra time afforded to them to deal with a number of issues as noted by the agency:
- Retailers with many different and diverse business models have raised concerns about how the rule lacks flexibility to permit them to provide meaningful nutrition information to consumers given their type of business and different operations.
- The FDA receives many questions about calorie disclosure signage for self-service foods, including buffets and grab-and-go foods. It does not want to proceed with a rule that might turn out to be too inflexible to support innovation in delivering information to consumers.
- The FDA has received questions regarding how to distinguish a menu, which requires the posting of calorie information, from advertisements and other marketing pieces, which do not require calorie information.
Officials noted that many of the menu questions before them are complex and have highlighted the need for further consideration and clarification. How to address the natural calorie variations for foods has also been raised by stakeholders as an issue that needs additional guidance and clarity.
While the FDA takes the next year to clear up some of the confusion surrounding the menu labeling rules, several legislators in Congress are working to push the “Common Sense Nutrition Act” onto the President’s desk. The legislation would give companies the flexibility they need to comply with the requirements.
The act would modify the menu-labeling regulation by:
- permitting retailers to identify a single primary menu while not having to include nutrition labeling in other areas of their stores.
- clarifying that advertisements and posters do not need to be labeled
- providing flexibility in disclosing the caloric content for variable menu items that come in different flavors or varieties, and for combination meals.
Finally, the bill would ensure that companies acting in good faith are not penalized for inadvertent errors in complying with the rule and would stipulate that individual locations are not required to have an employee “certify” that the establishment has taken reasonable steps to comply with the requirements.
The FDA has its work cut out for it. Not only must it meet its obligation to develop final rules for the existing law, it must also adhere to President Trump’s executive order calling for all federal agencies to reduce regulatory burdens. In the end the republican controlled House and Senate may very well pass a bill that changes the landscape – one President Trump would be very likely to sign into new law.